Litigants possess a powerful tool for winning cases that is hiding in plain sight: Internet mapping services, like Google Maps. Once an unreliable source from the standpoint of the rules of evidence, the overwhelming use—and increased reliability—of Internet mapping services has established them as an essential tool in today's society. Their importance has been confirmed by the New York State Legislature which, in December 2018, enacted an amendment to CPLR 4511 that allows courts to take judicial notice of the data and images provided by Internet mapping services, with a rebuttable presumption that they are accurate. But the dearth of case law since then suggests that the amendment is underutilized and underappreciated, although two recent cases demonstrate the amendment's potential power.

The Rise of Mapping Services

The "dot-com" boom of the 1990s and 2000s produced countless iconic innovations, from the Internet itself to smartphones, e-commerce and, of course, Internet mapping services. The early Internet mapping applications were limited to, for example, providing step-by-step directions from one place to another. Since then, however, Internet mapping services have developed at an incredibly rapid pace, becoming faster and increasingly reliable—to the point where they can now produce three-dimensional satellite images of almost 98% of the parts of the world where people live (Richard Nieva, Google Maps has now photographed 10 million miles in Street View (December 2019)), often with a variety of images from different years, all at the click of a mouse or tap of a finger. Today, over a billion people use just one of those applications, Google Maps, each month. Ethan Russell, 9 things to know about Google's maps data: Beyond the Map (September 2019).

Presumption of Accuracy

As their general popularity boomed—and long before the Legislature stepped in—litigators could not help but use Internet mapping services in their motion papers, at depositions, and at trial. However, litigators struggled with authenticating the data and images, and courts struggled with admitting their contents into evidence. Litigators often felt compelled to certify the data or images by going through the time-consuming and costly process of subpoenaing companies like Google or securing non-party witnesses (see, e.g., Lau v. Margaret E. Pescatore Parking, 2014 NY Slip Op 33638[U], **2 [Sup. Ct. NY Co. 2014] (Google images certified by Google used in motion for summary judgment); Rodriguez v. Shuttle Assoc., 2018 NY Slip Op 31595[U], **4 [Sup. Ct. NY Co. 2018] (use of non-party witness to authenticate image from Google Maps)) to authenticate them in order to avoid the risk of a ruling of inadmissibility (see, e.g., Williams v. City of NY, 59 Misc.3d 1213[A], 2018 NY Slip Op 50532[U] [Sup. Ct. Bronx Co. 2018] (Google Map printout inadmissible)). Some courts, relying on precedent, took judicial notice of the data or images from Internet mapping services, but even those precedents suggested that judicial notice should be limited only to matters of "distance and geography" (see, e.g., Lovelace v. RPM Ecosystems Ithaca, 42 Misc.3d 1235[A], 2014 NY Slip Op 50369[U], **6, n.5 [Sup. Ct. Tompkins Co. 2014]; Connor v. City of NY, 29 Misc.3d 1208[A], 2010 NY Slip Op 51757[U, ***3] [Sup. Ct. NY Co. 2010]).

In December 2018, however, the Legislature simplified matters by amending CPLR 4511, which addresses the matters as to which a court may or must take judicial notice, i.e., when a court may or must declare a fact to be true without the formal presentation of evidence. The amendment added a new section (c), which gives Internet mapping services and the data and/or images they provide a rebuttable presumption of accuracy. And this rebuttable presumption is not just limited to matters of "distance and geography," but deems all images from Internet mapping services to be fair and accurate depictions of the locations they show.

In particular, the amendment provides that courts shall take judicial notice of "an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an Internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented." According to its sponsor, New York State Senator Michael Gianaris, the amendment was meant to "save time in proving points of fact, while preserving the ability of an opposing party to offer credible and reliable evidence otherwise" (N.Y. Legis. Senate Bill S9061, Sponsor's Memorandum (June 18, 2018)).

Two Cases Show Amendment's Reach

Since its enactment, however, the amendment has been woefully underutilized. Although litigants no doubt have continued to use Internet mapping services as a tool in their cases, including in their investigation of the facts, there is a dearth of cases of litigants taking full advantage of the rebuttable presumption now afforded to Internet mapping services to win cases by dispositive motion or at trial. However, two recent decisions, both issued by Justice Lara J. Genovesi in Supreme Court, Kings County, demonstrate the amendment's potential power.

The first of these decisions was issued in Young v. Outside Space NYC, (Sup. Ct. Kings County, Oct. 3, 2019, Genovesi, L., Index No. 3726/2019). Young was a property damage case in which the plaintiff sued the current and prior owners of a neighboring property, as well as the neighbor's contractors, to recover millions of dollars in damage allegedly caused to plaintiff's single-family home. During the course of discovery, it became apparent that the defendant—the former owner of the neighboring property, who had purchased, renovated, and sold it within a 13-month period—had been mistakenly sued and had not been the owner when the damage allegedly occurred.

One particular claim, however, stood in the way of a clean dismissal, and it involved a dispute over when a large branch from a tree on the neighboring property fell on plaintiff's roof. Plaintiff claimed it fell while the defendant owned the neighboring property in 2015; the defendant's position was that the branch fell before it purchased the neighboring property. Plaintiff produced photographs of the fallen branch lying on his roof, but the defendant had no way to prove that the branch fell before it purchased the neighboring property. In other words, counsel faced a textbook issue of fact typically left for trial—that is, if it were not for Google and the amendment.

Google Map images of the plaintiff's property—from the exact same vantage point, taken in 2012, 2013, and 2015—conclusively established the veracity of the defendant's assertion. They showed quite clearly that the large branch was still attached to the tree in 2012, fell on the roof of the plaintiff's home in 2013, and was still on the plaintiff's roof in 2015 (matching the photographs produced by the plaintiff). It was these Google Map images, and the ability to use them as provided by the amendment, that led Justice Genovesi to dismiss the plaintiff's complaint in its entirety as against the defendant, ruling that "[t]here is a rebuttable presumption that Google Map photographs are a fair and accurate depiction of locations." In short, the amendment provided the means for the resolution of a factual dispute in the defendant's favor without the need for a protracted trial, saving tens of thousands of dollars in litigation expenses.

In Tsokolakyan v. Tiffany Mgt. Ltd., 2019 NY Slip Op 33454[U] [Sup. Ct. Kings Co., Nov.14, 2019], a personal injury case, the issues before the court on the defendant's motion for summary judgment were whether the entrance to the commercial storefront, where the plaintiff claimed she fell, violated New York City Building Code and whether the defendant, as the out-of-possession landlord, was responsible for any such violation. To address these questions, the court first used the amendment to take judicial notice of several Google Maps images of the commercial space from different years, without the need for a certification or a witness authenticating those images.

The court then used those images to eliminate fact issues, and specifically to determine the condition of the commercial space at different points in time, including to determine when it was renovated, how its entrance changed, and whether the entrance violated New York City Building Code requirements. As a result, the court granted the defendant out-of-possession landlord's motion for summary judgment. Without the amendment, the court may not have been able to reach these core issues until trial.

Conclusion

For litigants, Internet mapping services are no longer just a researching tool. Nor should litigants hesitate to use the data and images they provide in their motions, at depositions, or at trial, all without the need for a certification or a witness to authenticate them. The amendment is clear: upon a litigant's request, the data and images are provided with a rebuttable presumption of accuracy—and contrary to precedent that pre-dates the amendment, that presumption is not limited to information concerning "distance and geography," but extends to the actual depictions in each image.

And as Google Maps and other Internet mapping services update their data and provide ever newer images of properties, streets, and areas that people inhabit and traverse, all while retaining the older images from years before, a mountain of potential evidence and data will be amassed for use by the savvy litigator. Thanks to the amendment, this evidence, which Google and other tech companies are accumulating and making available on their own dime, will become more and more useful as time passes, providing litigants with a treasure trove of data to prove or disprove claims.

Milad Boddoohi is an associate and Steven Sladkus is a founding partner of Schwartz Sladkus Reich Greenberg Atlas. The authors' firm represented a defendant in the case 'Young v. Outside Space NYC,' mentioned in this article.